February 06, 2007

Libby's Theory Of His Defense

Libby's defense team has posted their theory of his defense, some version of which ought to be included in the final jury instruction (Jeralyn Merritt explains this).

The .pdf is only two pages but the very short version is, Libby forgot but the errors were innocent and the information was trivial.

No surprise, but... I question this:

Mr. Libby further contends that when the investigation began he was confident that... he had not disclosed classified information about Mr. Wilson or his wife to any other reporters.

Really? I am confident Libby could argue that there is no evidence that he was aware that Ms. Wilson's status was classified at the time he disclosed it [which would be relevant under the IIPA or the Espionage Act]. However, is he really going to convince the court that as of October 2003 he was "confident" that Ms. Plame's status was not classified? Addington (OVP Counsel), Schmall (CIA briefer) and some newspaper articles Libby marked up all suggest that he was aware of such a possibility.

If he was soooo afraid of an IIPA violation (can you name a successful prosecution for one, especially for naming a CIA employee already twice "outed") why do we have in his gj testimony admissions (apparently erroneous) of telling Kessler and Miller and Cooper?

Well, we can forget the Subjunctive Defense now. It's straight imperfect memory. That simplifies many things for the defense, because it gives them a consistent story that Libby stuck to from the FBI interviews through the GJ. It might even mean they don't have to impeach Russert, just claim that Libby got confused.

The question is whether they want to say that Libby's metamemory at the GJ was accurate (about the state of his imperfect memory when he talked to Russert) or they want to say that his GJ metamemory was also flawed. They seem to have preserved both options in the theory document linkied in the post.

On the downside for the defense, the prosecution has tossed up enough dust to suggest that Libby might have heard about/talked about Plame lots of times prior to the Russert conversation. Judging rom the partial blogscripts, given the weaknesses of the witnesses to date, it sounds like reasonable doubt to me, but I'm not in the courtroom and my biases might affect my perception.

As for the substance of a memory defense: I know someone who has worked in a Cabinet department and said that a senior (Senate-confirmed) executive's day was basically a series of 20 to 30 minute meetings with different people on different topics blocked out one after another all through the day, every day, including many weekends. An administrative assistant would literally keep the schedule and trundle the executive from place to place, telling the executive where to go next. As a newbie, the executive would forget to eat because there was no spot in the schedule for lunch, and the staff would have to intervene to get that person fed. At night, huge amounts of paper would have to be read and responded to, prior to starting off with meetings again the next morning.

If Libby's calendar looked anything like that, and he's allowed to show the jury what his working life was all about, he'll be in a decent position to convince them that it's a wonder he could remember any details, notes or no notes. So I can see why the defense fought so hard to declassify some of Libby's work materials. It isn't so important to show that he was working on more important stuff, but rather that he was swamped with a huge variety of other stuff.

Then why does his gj testimony show him confessing (sometimes erroneously) to telling some reporters?
Answer me that, please.
He just thought he'd be in trouble if he didn't think Russert had told him?
Cooper admits HE told him.

Tom's point which is a good one, is that by the time Libby testified he may have worried (like Ari's OMG!) that he actually had released classified info.

Sounds reasonable.
It's cboldt's theory.

Sooooo either Libby was worried or he was not.

If he was NOT worried, what does that imply?

(1)per Rick, she had been declassified AND Libby knew it

(2)Libby wasn't worried at all about her being covert, knowing her affiliation wouldn't have been passed around so casually even within the administration.

(3)His story isn't a lie at all, he really believed he heard it from reporters (in that when he heard it from reporters it became an *important* factoid rather than the unimportant one that slipped in and out of consciousness before.

(4)He also believed he was careful in relaying info to reporters. I've heard something like that too doesn't mean he heard it officially and is not confirmation.

Fitz theory was that Libby was the first to leak. Therefore he over relied on the testimonial variances assuming that was to hide the date and get it behind the Novak leaker. In fact, the leak to Woodward was the first and all this confusion is trivial and irrelevant and no proof of intent at all.

(In other words his theory is incomprehensible after Woodward showed up.)

Tom's point which is a good one, is that by the time Libby testified he may have worried (like Ari's OMG!) that he actually had released classified info.

In order to be in any legal jeopardy, he'd have had to know it was classified when he released it. There's exactly zero evidence to support that contention (and plenty--particularly the casual handling by CIA types--that suggests it wasn't the case). Finding out she was classified later also seems a stretch, since Fitz apparently has the only evidence outside CIA HQ. But regardless, it'd be a moot point.

All the flurry and talking to several reporters about Wilson on ONE DAY.

Cooper
Kessler
Miller
Thomas

That one day probably dominated Libby's memory even though he missed or mixed up several details.

And the first reporter he talked to, Cooper, mentioned Libby's wife to him.

Couple that with the conversation he had with Rove the previous day where Rove told him about Novak, and he told Rove about Russert, Libby had totally associated reporters and wilson's wife in his mind.

Of course, the problem is still Russert.

But the Big Push Day with Four Reporters? I wonder what Cathy would say about that?

Well, sometimes we over analyze ourselves, even when we know we are right, even when we are absolutely certain we are 100 percent right - if someone questions us repeatedly we can start to waver in our sureness and our belief, and may even express that wavering. Haven't we all had that happen at one time or another. You kind of take a deep breath, regroup and come back to where you started. No. I am right!

Again, I see things differently. The word "disclose" is telling you that he didn't do anything on purpose. Or that it is forbidden to the president's staff to CORRECT "mis-attributed" information carried repeatedly by the press; as "anything wrong."

He has records that the White House was concerned that the president, in giving the SOTU address, (which includes the 16 words about Iraq and attempts to aquire yellowcake), were not DISHONEST. The president based it on what he thought was VALID intelligence. Which Tenet "gree lighted" as "slam dunk."

There were lots of telephone calls IN THE RECORD, now. Plus at the end of the day, of listening to most of the grand jury audio tapes, the jurors (and others, assorted in the courtroom audience), burst out laughing BECAUSE Libby honed in on "just how many phones Libby had!" And, he wasn't a telephone operator, or receptionist, either.

BUT THE JURY LAUGHED! And, lots of ringing phones. Connected to that laughter, proved to me that the jurors understood he was a very busy man.

Many people are also beginning to see the "set up." Or as someone, here, calls the "ACME ENTRAPMENT TRAP." Some assembly required.

I'll also assume Libby's pants were not around his ankles, as he was fielding all these calls. Monica was not under his desk. And, his wife, had she been in the building, was not worried that Libby was diddling an intern. But the press? Covers the GOP a bit differently than they do the donks. (And, it's not even a language barrier, mind you. Or having to send signals to the deaf.)

IT's just your ordinary political assassination. Or smear.

I have my doubts that Fitz-ta-fizzle isn't doing all that well. And, even he calls this a "small case."

And, I think you're jumping ahead of yourselves when you're trying to guess "Well's" tactics at CLOSE. We've a way to go, yet.

For all I know, there's a RULE 29 in play.

For all I know, Cooper's testimony can be tossed.

And, before Well's gets to handle the ball, IF Cooper goes out the door with RULE 29 "paper," whose to say Fitz doesn't jump up and yell "I want a dismissal." But with prejudice. Where? I didn't go to law school. But a charade is still a charade.

I'm not sure the press is fully confident they've got all bases covered. They're still absorbing this blog interference. Even though it looked like a major hacking error occurred to the Net. Per Drudge. Where I get all my news.

It's nice to see the 8 hours of testimony are really wrapping up fast. And, now, at least jurors, who sit in silence with Libby, can infer something from his voice. Yeah. They heard him speak!

In order to be in any legal jeopardy, he'd have had to know it was classified when he released it. There's exactly zero evidence to support that contention (and plenty--particularly the casual handling by CIA types--that suggests it wasn't the case).

(F. points out that one document, a version of the CIA cable, has "Joseph Wilson" written on it.)
F: Do you recognize the handwriting?
L: (with a little hedging) It looks like the Vice President's.
(F. pulls out a copy of the eight-page CIA memo. The second page has "Joseph Wilson" printed, and "Wilson" in script underneath.)
F: Do you recognize the handwriting?
L: Not the printing. The script is mine.
F: When would you have written this?
L: I don't think it was in the June time frame.
F: How often did you go back to these documents, to refresh your memory?
L: Several times.
F: In what situations?
L: Before talking to reporters, or to the Vice President.
F: Did you review these documents around when you were told by the VP, June 12 or so, that the ambassador's wife worked in the Counterproliferation Division of the CIA?L: I think so.
F: And this was around the time you were interviewed by Pincus?
L: Yes.
F: Did you mention to Pincus that the envoy's wife worked for the CIA?
L: No.
F: Did you understand that you were legally prohibited from doing so?
L: No.
F: We spoke before about your conversation with Judith Miller on July 8th. What information did the VP want you to convey in this meeting?
L: That NIE backed up our view of Iraq intelligence (explains at length)
F: When was the NIE officially declassified?
L: July 18th.
F: Did the President specifically authorize you to give this information with Judith Miller.
L: He didn't know Judith Miller, but did authorize sharing it with the press.
F: Was Miller the first reporter that you discussed the NIE with?
L The first I discussed the text of the NIE with, yes.
F: And you showed her the text of the NIE
L: The relevant portions, yes
F: Of a full or redacted copy of the NIE?
L: Redacted.
F: Did you give her the redacted copy?
L: No, just a page with bullet points.
F: Did you share the document you gave with Judith Miller with the VP first?
L: No.
F: Who prepared the redacted copy?
L: I did. Well, I didn't type it, I directed VP's assistant, Jenny Mayfield to type it.

Perhaps one of the best things in favor of Libby is . . . Wells is a much nicer man than Fitzgerald.

Jurors will be influenced by the contrast in Wells not beating up prosecution witnesses even when it was obvious that he could have easily, with Fitzgerald's relentless grilling of Libby (two boring days of audiotape for the jury to listen to) over trivia.

Although the jury wasn't privy to it, I think of Fitzgerald's nasty examination of memory expert Elizabeth Loftus. I've met her and she is a very nice woman in her sixties. There was no reason to treat her so nastily for hours on end. Fitzgerald did, though.

Fitzgerald has no sense of proportion. Everyone he examines on the other side is like a mob member or terrorist. It will be interesting to see if he continues in this vein when cross-examining the defense witnesses.

WASHINGTON - Hackers briefly overwhelmed at least three of the 13 computers that help manage global computer traffic Tuesday in one of the most significant attacks against the Internet since 2002.

Experts said the unusually powerful attacks lasted as long as 12 hours but passed largely unnoticed by most computer users, a testament to the resiliency of the Internet. Behind the scenes, computer scientists worldwide raced to cope with enormous volumes of data that threatened to saturate some of the Internet’s most vital pipelines.

Well, sometimes we over analyze ourselves, even when we know we are right, even when we are absolutely certain we are 100 percent right - if someone questions us repeatedly we can start to waver in our sureness and our belief, and may even express that wavering.

GREAT point!

Remember there was a GJ question to him. Something like, if you were so sure the info wasn't classified, why were you so careful not to reveal it.

That's something the jury is going to have to wrestle with.

I 'believe' Libby was sure she was not covert because of the casual way her identity had been passed around to all and sundry. I'm sure he felt no legal liability for that---especially after having read the IIPA.

However, he was TRAINED to be careful about passing on the CIA affiliation of ANY CIA employee to outsiders and thus had been noncommittal about it in speaking with reporters (something Miller had attested to--that Libby was always careful about classified information).

That's where the NDA comes in. It can be used to show that Libby was following procedures, not that he thought the info was classified.

And when the time comes to testify, Libby is not worried. Not only is he sure she's not covert he knows he followed procedures when talking with reporters.

Call me a pollyanna, but I find it impossible to believe that Cheney et al didn't find out Plame's status before they spoke with investigators.
I mean...he's Cheney! He can get someone to tell him if they're in potential trouble or not.

I copied the following from Free Republic. A comment left by EVA. This is her take. (And, I haven't seen anyone here yet produce anything like it.)

"I think that Fitzgerald knows that he has no case, but still wants to inflict as much damage as possible. I read that he's going to show the jury news clips of Libby and the judge is going to allow it. My guess is that Fitzgerald is going to try to get Libby's lawyers to move for a mistrial and then just never bring the case back up, leaving Libby and the Bush administration under the taint of the accusations. I think Fitzgerald just wants to drag this thing out until 2008."

But first, Fitz has a few things he wants to share. The "mystery witness" is apparently a DOJ attorney who will testify about the rules for subpoenaing journalists, since people have raised questions (Fitz mentions Don Imus!) about why Russert was forced to testify, but not purported leakees like David Gregory (Jeff, are you out there?). He may not testify, because Fitz isn't sure that's how he wants to end his case. He also wants to enter a bunch of other documents as evidence, including a packet of articles showing Libby's obsession interest regarding the press response to Wilson… and he also mentions "the aspens letter."

It's 4:29, and we're not quite done yet.

The defense makes its pitch for excluding the new batch of articles, and Walton seems receptive, saying they are "of little probative value and potentially prejudicial." Fitz says they show Libby's focus and the Wilson issue and that the govt. feels the "Wilson issue" and "Wilson's wife issue" are inextricably entertained — a little snark as he says, "just because someone charged with perjury says the two were separate, that doesn't mean we should be constrained" (or words to that effect). Walton says he'll think it over.

If MayBee is correct, and Cheney can get any information he wants out of anybody; then how come Colin Powell and Armitage didn't fess up to the president that they leaked EARLY. And, were playing the press like a fiddle?

Seems to me, Fitz-foolish is blowing holes in all sorts of reputations. "Including men so tough they get all the information out of people they wanted." And, then, after the squeezie, and the ringer, that person is hung up to dry. (Nah. Nobody's that's skilled. You can get just so much information "out" ... when people want to deceive.

Paul L. Thanks for also mentioning that "nice-ness" goes a lot further with People, that snarls and badge-flashing. (As I learned from reading it in one of Gerry Spence's books, beating up on a witness because you're so clever, can turn jurors OFF.) Being nice, however, is a gift few men carry, well. You can't substitute bullying for charisma.

Still, we have to wait to see how this all unfolds. While even with hackers from South Korea doing so much mischief! The Internet is not susceptible to "strikes," the way it used to be when unions struck papers. And, then getting information was hard to come by. (Yet Neil Simon opened on Broadway. And, was TERRIFIED by the NY paper strike. He stood outside the theater and handed pasersby free tickets. WORD OF MOUTH worked to make his play a hit.)

I assume that Plame was not covered as covert at the time and that her classified status was lifted at close to the same time the President declassified the NIE. I keep returning to July 7 because of Walton's continued formulaic stipulation of 'before July 8'.

We've covered the ground on the possibility that there was a grey period between 'declassification' and 'formal declassification' before and that snip of testimony above confirms its existence. The whole Fitzfarce may be about the "gray area" and reluctance on the part of the WH/OVP to step up and take responsibility.

If he was soooo afraid of an IIPA violation (can you name a successful prosecution for one, especially for naming a CIA employee already twice "outed") why do we have in his gj testimony admissions (apparently erroneous) of telling Kessler and Miller and Cooper?

If Cecil Turner is with me, who will stand against me? Even if he finds out after the fact that her status was classified, the IIPA requires him to have been aware of that at the time.

As to Cheney having it declassified - I doubt I can track it down but in some court filing (or early letter to opposing counsel!? I bet that's it) Fitzgerald mentioned that Ms. Plame's status had been declassified in order to facilitate the investigation. That sort of suggests that she had not been previously declassified.

Almost totally off-topic (and off the wall), but the Aspen letter made me think of it - Libby's phrase to Ari, "Hush hush, on the qt" is from LA Confidential; the Apsens turning as one may be from Travolta's Phenomenon (or it may be widely known).

So, is Libby a movie fan, are other phrases or ideas in his testimony coming from movies, and could that possibly be helpful?

As to discrediting Russert, Russert is a weird witness - even if Russert *did* tell Libby on July 10, that does not explain Libby telling Ari on July 7, or Miller on the 8th.

Conversely, even if Russert did *not* tell Libby on the 10th, Rove's mention of the Novak column precedes the leaks to Cooper et al on the 12th.

I happen to think that if Russert blows up jurors will figure every other reporter is lying, too, and the case will collapse.

But if Russert sticks to his story, so what? The defense still has to insist on reasonable doubt with Miller and Fleischer and then has to find some Russert substitute (Tim-lite), which could be Cooper.

Short version - Russert can lose the case for Fitzgerald but he can't win it.

Fitz' mystery witness, is a lawyer who used to work on his own team. And, there's no guarantee Fitz puts him on, "next." Because there may be a rule out there, he can hold this guy in "reserve" and regain DIRECT. Just for this instance? Whatever the rules are on rim shots.

Now. From my point-of-view. When a person plays poker, they don't yell out "I've got the greatest cards!" And, then expect anyone around the table to bet money. So why is it assumed Fitz has announced what he's planning to do when he closes?

Leave it to a layman, to assume that in presenting information to the judge "on where he's gonna go," that he'd be doing more than an "opening bet." Yes. He's laid out stuff in his openning. (And, right away, Fitz went into "bandaid" mode. Meaning? He had to throw stuff together "for unexpected guests." And, that's not how top chefs work their kitchens.) That's why I think Fitz' case, so far, is a mess.

And, yes, I'm sure Wells is allowed to keep some of his "cards" in his pocket.

And, I'm sure, like a well-trained surgeon, he doesn't scream if it's a tough case, even the word "oops." (That once cost a surgeon plenty of malpractice moolah.)

And, since nobody in this world has inner parts that match text book examples, anyway. (Or you'd only call a tree something that matched a tree that was your example in a text book. Without making acommodations for the way branches grow. And, roots intertwine.) The reality of battle plans to battles, is that when you "engage" you get chaos. So ya gotta keep yer wits about ya.

Wells got a whole lot of different directions he can choose; as the needs arise. For instance, EVEN IF RUSSERT REFUSES TO CORROBORATE LIBBY'S SWORN TESTIMONY. (And, even if Russert has to say "sure, there were other, bigger, things, he didn't discuss either, because they're irrelevant.) I'd actually love to see him take that tack. Wells' packs ammunition. He's not going to approach, Russert, for instance, and let Russert get away with weasel words. No rim shots in that.

Jurors are gonna see that, too. Sweat. Or palor. What if they're used to seeing Russert on TV? Makeup can make ya look a lot healthier than in "person." (And, now that Deborah Bond pointed it out, watch the jurors LOOK FOR BODY LANGUAGE.)

If you could surmise what would happen, ahead, everybody would say "you gave away the spoiler, and now they're not gonna watch the movie."

Well, I'll bet ATTENTION MUST BE PAID! (Death of a Salesman. Arthur Miller. Made his whole career stick on that one line.) Show biz. And, predictions. Nothing is true until it's proven true. And, I'll bet ya there's an audience out there following this case. RIVETED. Just like you.

I am not quite sure I understand why so many on this blog, including TM, seem to think Russert is such a paragon of truthfulness and "steel trap memory." He's a TV flak hack. Not even a pretty boy TV flak hack. I don't think Libby confused Russert with anyone else and I think the fact that he immediately went to VP to relay Russert's convo and that Wilson's CIA wife came up is indication that Libby's version is most likely the correct one.

Russert as moderator of MTP has shown himself, in the past several years, not to be an impartial interviewer but instead a partisan anti-war flak hack. And he works for NBC, where he carries the water just like Matthews, Olberman and Gregory do.

If he describes himself as a journalist, I won't be surprised to hear that the jury laughs.

Carol, you lost restraint again. I'll answer the first puzzle for you. Lawyers have an obligation to the court and opposing counsel to give tham an idea of how much longer they anticipate their case will take and where they are going at the end of each day. That is so that all parties and the court can prepare. The defense, for example, has to make arrangemnts for subpoenaed witnesses and needs to have an idea of what the schedule will be.

Counts Two, Three, Four and Five each contain multiple alleged false statements or
declarations under oath made by Mr. Libby. To find Mr. Libby guilty of these
counts, the government must prove beyond a reasonable doubt that at least one of the
alleged statements or declarations contained in each count was false, fictitious, or fraudulent. However, as to each count, you must unanimously agree on which statement was false.

No evidence has been presented that Valerie Wilson’s CIA employment status was,
or was not , classified or covert, or that disclosure of that status did, or did not, pose
a risk of damage to the national security, the CIA, or Ms. Wilson herself. You may
consider what, if anything, Mr. Libby knew or believed about her status or damage
in determining his state of mind when he spoke to the FBI and testified before the
grand jury. But you may not speculate as to whether Ms. Wilson’s employment was
actually classified or covert, or whether disclosure of that employment did in fact
cause a risk of damage to anyone.

what Fitz wants"

The questions of whether Valerie Wilson’s CIA employment status was, or was not,
classified or covert, and whether the disclosure of that status did, or did not, pose a
risk of damage to the national security, the CIA, or Ms. Wilson herself, are not issues
in this trial, and you must not speculate as to whether Ms. Wilson’s employment was
actually classified or covert, or whether disclosure of that employment did in fact
cause a risk of damage. You may, however, consider the nature of the FBI’s and
grand jury’s investigations, including the possible crimes that were being
investigated, in determining whether the charged false statements and declarations
were material to those investigations. You also may consider what, if anything, Mr.
Libby knew or believed about her status or about potential damage that could be
caused by disclosure in determining his state of mind when he spoke to the FBI and
testified before the grand jury.

Fitz logic for change:

The government objects to the defendant’s proposed instruction in that it does not present the issue in a neutral manner, and in that it falsely suggests that the government was unable to present
evidence regarding the classified status of Ms. Wilson’s employment on and after January 1, 2002,
and that it fails to note that Ms. Wilson’s employment status was material to the grand jury’s investigation. The legitimate purpose of removing from the jury’s consideration the issues of whether Ms. Wilson’s employment status was in fact classified and whether disclosure of that status could cause damage can be accomplished without misleading or confusing the jury.

Incidentally, emptywheel (aka Marcy Wheeler), who wrote a whole book on this stuff, thinks that Libby made up the whole I-leaked-the-NIE-to-Miller story to hide the inconvenient fact that the instruction in his notes to leak something to Miller on July 8 was really about Valerie Plame. He invented the NIE leak to cover himself, and then that was the inspiration for the completely unprecedented insta-declassification doctrine.

Marcy's a piece of work. Glad she's not running for President. What? I REALLY REALLY can insta-declassify?!?!?!? Oh!Wow! Goodie!!

And the notion that the NIE is only a cover story for the REAL story of leaking VAl is preposterous. Maybe Marcy would be that dumb if she were President or Vice President, but leaking VAL doesn't refute what Wilson SAID. It only shows nepotism was involved in the choice to SEND him.

Incidentally, emptywheel (aka Marcy Wheeler), who wrote a whole book on this stuff, thinks that Libby made up the whole I-leaked-the-NIE-to-Miller story to hide the inconvenient fact that the instruction in his notes to leak something to Miller on July 8 was really about Valerie Plame. He invented the NIE leak to cover himself, and then that was the inspiration for the completely unprecedented insta-declassification doctrine.

Marcy's a piece of work. Glad she's not running for President. What? I REALLY REALLY can insta-declassify?!?!?!? Oh!Wow! Goodie!!

And the notion that the NIE is only a cover story for the REAL story of leaking VAl is preposterous. Maybe Marcy would be that dumb if she were President or Vice President, but leaking VAL doesn't refute what Wilson SAID. It only shows nepotism was involved in the choice to SEND him.

The government objects to the defendant’s proposed instruction in that it does not present the issue in a neutral manner, and in that it falsely suggests that the government was unable to present
evidence regarding the classified status of Ms. Wilson’s employment on and after January 1, 2002

Am I misremembering (which would be shocking, I know) or did Libby's attorneys ask for any determination that she was in fact covert during discovery, and were told that no such determination had been made?

I seem to recall something about that. If they never made the determination then they sure can't present it as evidence.

Syl-
Right, that's what I'm saying. Libby's defense is saying he is confident he didn't provide any classified information to reporters.

TM said: However, is he really going to convince the court that as of October 2003 he was "confident" that Ms. Plame's status was not classified?

As far as I know, he didn't ever give out information about what her status was at the CIA, only that she might have worked there (in WINPAC? The Bureau?). So he could have been confident *he* didn't give out any classified information, even in Oct. when rumors swirled about her status.

I haven't read this pleading..there has been stuff on this before here. Pre the SCOTUS decision the prosecutors argued (correctly) that motive to obstruct was not a necessary element of the crime--the SCOTUS said that went to far, criminalizing perfectly legal conduct (in that case document destruction in the ordinary course of business w/o any knowledge they were being sought in a criminal investigation). One of the justices noted that even counseling your child not to talk to the police w/o an atty presence could be used to charge a parent with obstruction under that reading. Naturally, Fitz was the broadest possible reading of the obstruction statute and the defense the narrower reading.

All the flurry and talking to several reporters about Wilson on ONE DAY.

Cooper
Kessler
Miller
Thomas

That one day probably dominated Libby's memory even though he missed or mixed up several details.

Syl, I think you've really hit on something.

You got the Cooper/Miller wife talk.

I thought it was mentioned in the GJ transcripts that Kessler asked about it. I believe he got a subpoena.

Now, Evan Thomas recently mentioned on Imus that he may get one too and has to hush-up. I hope Mr. "Our job is to bash the President" doesn't have some post-start of trial commentary floating out there for the defense? lol

So far in the record we have Rove telling Cooper and McClellan not mentioning Libby ,only Rove, and the note from Cheney about not sacrificing Libby to save Rove.
And that's just in the prosecution's case.

1. No such determination had been made at the time and still hasn't been.

2. No such determination had been made at the time, but since then there has been one.

3. They had made the determination but didn't reveal it.

1 and 3 would seem to clearly be misleading the court, either in the original filing or this one. I'm not sure about case #2 though. Would they have been required to hand it over since Libby had previously asked for it?

In any case I suspect that Libby's lawyers will be all over this tomorrow.

"1) That Plame was a covert agent serving abroad within the prior 5 years.

There is no probative evidence Libby could provide in his testimony to this point. All evidence on this point is in the hands of Fitzgerald’s client in this matter, the CIA. In response to discovery motions by Libby’s defense, Fitzgerald says he never sought all the evidence of that because it is not material"